HKSAR v. Kwok Fuk Chuen (also known as Kwok Chi Chuen)

DCCC 26/2018

[2018] HKDC 786

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 26 OF 2018

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. He unlawfully trafficked in a dangerous drug, namely, 6.52 grammes of a mixture containing 4.91 grammes of heroin hydrochloride.

2.The facts of this case are very straightforward.  On 2 October 2017, at about 4 pm, a police officer spotted the defendant looking suspicious in Mongkok and stopped him.  He found in his waistline a tissue, and inside that tissue, he found 10 red pellets containing heroin and 30 white slightly larger pellets also containing heroin.

3.Under caution at the scene, the defendant asked the officer to give him a chance.  Later that day, there was a house search but nothing suspicious was found.

4.In a video-recorded interview, the defendant made a full admission.  He said he had paid $4,000 for the 40 pellets of heroin.  He bought in bulk so he got a discount.  He intended to split that amount and pay half.  His friend, Ah Hung, would pay half as well.  He has been a heroin addict for 20 years and would inject heroin into his arm to relieve pain.

5.It is agreed that the estimated street value of that heroin is $4,800-odd.

6.In mitigation, I have heard that the defendant is 58 years old, is married and has been unemployed for as long as he has been a drug addict.  I have been told that he has been unemployed because of back pain, but it is probably more likely due to his addiction.  Heroin addicts do not hold down jobs for very long.

7.The defendant also has a very poor criminal record.  He has 27 convictions over a period of 40 years.  Of those four are trafficking in dangerous drugs convictions, I note in 1993 he was convicted in the High Court for trafficking dangerous drugs and sentenced to 15 years’ imprisonment.  His last trafficking conviction was in 2012 in this court.

8.The defendant’s best mitigation is his plea of guilty today.  He also hopes to benefit from mitigation that part or at least half of the heroin was for his own consumption. 

9.Pursuant to the authority of R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentence for trafficking heroin of up to 10 grammes is a term of imprisonment of between 2 to 5 years.  Mathematically speaking, 4.91 grammes would be a starting point of 3 and a half years.

10.I will consider the mitigation of self-consumption.  The prosecution does not object or challenge that mitigation.  The defendant says he uses heroin for medicating his back pain.  I have a medical report to support the fact he has back problems.  Even if he did not, he clearly is a long-term drug addict.  His first drug conviction was back in 1991.  I am satisfied he is a hardened heroin addict and needs to try and consume heroin daily.  I accept he is buying heroin and buying it for his friend or to share with his friend but it is still trafficking.

11.I have been referred to the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and I have reminded myself of the relevant principles in HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69.  I have taken into account what the Court of Appeal has said in the former case about an appropriate discount of between 10 to 25 per cent.  

12.Having considered the mitigation and the facts of this case, I will take for this quantity of drugs a starting point of 3 years and 3 months.  Having said I will accept that there is the mitigation of self-consumption, I will take from that starting point a further discount of 6 months.  That is a discount of just over 15 per cent.  That will reduce the starting point to one of 2 years and 9 months.   

13.Defendant, please stand up.  For your plea today, you are entitled to a discount of one-third.  After that discount is applied, for this offence, you are sentenced to 1 year and 10 months. Do you understand that?

DEFENDANT: Understand.